BRADLEY R. NELSON v. WORLD SAVINGS BANK, FSB & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-888

BRADLEY R. NELSON

vs.

WORLD SAVINGS BANK, FSB & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Bradley R. Nelson, appeals from the

dismissal of his complaint with prejudice against Wells Fargo

Bank, N.A. (Wells Fargo), successor to World Savings Bank, FSB

(World Savings) and Isabelle Lewis. We affirm.

Background. We accept as true the facts as alleged in the

complaint, Buffalo-Water 1, LLC v. Fidelity Real Estate Co., 481

Mass. 13, 17 (2018), as well as any relevant "[m]atters of

public record, orders, items appearing in the record of the

case, and exhibits attached to the complaint" (citation

1Nelson filed this complaint against World Savings Bank,
FSB and Isabelle Lewis. Wells Fargo Bank, N.A. contends that
it, rather than World Savings Bank, FSB, is the proper
defendant.
omitted). Rosenberg v. JPMorgan Chase & Co., 487 Mass. 403, 408

(2021).

1. Procedural history. On March 2, 2007, Nelson entered

into a loan agreement in the amount of $511,500 and a "Home

Equity Line of Credit Agreement" in the amount of $102,300 with

World Savings. Each loan was secured by a mortgage on Nelson's

property in Groton (the property). World Savings Bank merged

into Wells Fargo which foreclosed on the property. Years later,

after significant litigation in Federal court, Nelson filed a

complaint on June 30, 2023, in the Superior Court seeking

declaratory relief with respect to the two mortgages described

above. He also claimed that defendant Isabelle Lewis, an

employee of Wells Fargo, committed criminal fraud. He sought

damages for larceny and forgery. The thrust of his argument is

that Wells Fargo did not have standing to foreclose on the

property.

On August 30, 2023, defaults entered pursuant to Mass. R.

Civ. P. 55 (a), 365 Mass. 822 (1974) (rule 55), against both

World Savings and Lewis, because neither defendant had served an

answer or responsive pleading. Wells Fargo and Lewis (the

defendants) filed emergency motions pursuant to rule 55 (c) to

vacate the defaults on September 12, 2023. The first motion

judge allowed the motions to vacate on September 20, 2023.

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On October 20, 2023, the defendants filed a motion to

dismiss. In response, Nelson filed two motions to strike

pleadings, motions, and documents filed by the defendants. On

December 8, 2023, a second motion judge denied both motions to

strike. Ultimately, on April 24, 2024, after a hearing, a third

motion judge dismissed Nelson's claims for declaratory relief on

preclusion grounds and dismissed the claim against Lewis on the

ground that there was no private right of action against her.

On May 9, 2024, Nelson filed a motion for reconsideration, which

the third motion judge denied.

2. The prior litigation. Because Nelson's claim was

dismissed on the basis of issue preclusion, we describe the

prior litigation, which are matters of public record, in detail.

Rosenberg, 487 Mass. at 408. The defendants attached to the

motion to dismiss and legal memorandum the decision of Nelson v.

Wells Fargo, N.A., 621 B.R. 542 (2020). In that decision, the

court stated in relevant part, "Effective December 31, 2007,

World Savings changed its name to Wachovia Mortgage, FSB

('Wachovia'). On November 1, 2009, Wachovia converted into a

national bank with the name Wells Fargo Bank Southwest, N.A.,

which merged into Wells Fargo Bank, N.A. on the same date."

Nelson, 621 B.R. at 545. When the third motion judge dismissed

the complaint in this case, she found that the United States

District Court, the bankruptcy court, and the United States

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Bankruptcy Appellate panel of the First Circuit (BAP) all

definitively decided that Wells Fargo holds Nelson's mortgages.

a. The 2012 bankruptcy proceedings. On July 26, 2012,

Nelson filed a voluntary petition in the United States

Bankruptcy Court for the District of Massachusetts (bankruptcy

court) seeking relief under Chapter 7 of the United States

Bankruptcy Code (bankruptcy code). On the schedules attached to

his petition, Nelson identified Wells Fargo as his creditor for

both lines of credit and filed a declaration under penalty of

perjury that the schedules were correct. Nelson received the

Chapter 7 discharge on October 23, 2012. During the case, Wells

Fargo filed a motion for relief from automatic stay, claiming

that Nelson was in default. In 2014, the court granted Wells

Fargo's motion, and it commenced foreclosure proceedings.

b. The 2014 litigation. On September 4, 2014, Nelson

filed a civil complaint against Wells Fargo and World Savings in

the Superior Court seeking declaratory and injunctive relief

preventing them from foreclosing on the property. The case was

removed to the United States District Court where a Federal

judge granted Wells Fargo's motion to dismiss so much of the

complaint that alleged breach of duty to foreclose in good

faith, alleged breach of contract, and sought declaratory

judgment. Thereafter, the judge allowed Wells Fargo's motion

for summary judgment on the remaining counts, which alleged

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promissory estoppel and violation of G. L. c. 93A. On June 26,

2017, Wells Fargo Home Mortgage, Inc. sent Nelson an

acceleration letter and sent a second acceleration letter on

July 12, 2017.

c. The 2019 bankruptcy proceedings. On May 10, 2019,

Nelson filed a second petition with the bankruptcy court seeking

relief under Chapter 13 of the bankruptcy code. He also filed

objections to Wells Fargo's two proofs of claim, challenging

Wells Fargo's ownership of his mortgages. He argued that all

debt due to Wells Fargo had been discharged in the prior

bankruptcy case where he received the Chapter 7 discharge. On

November 19, 2019, the bankruptcy court overruled Nelson's

objections to the proofs of claim and concluded that Wells Fargo

was entitled to relief from the automatic stay so that it could

foreclose on the property. On November 6, 2020, the BAP

affirmed. Additionally, the BAP found Nelson's argument against

issue preclusion, or collateral estoppel, "unpersuasive" and

stated that "the elements for the application of federal

collateral estoppel are easily met."

3. Nelson's sale of the property. While the civil action

at issue here was pending in Superior Court, Nelson deeded the

property to his daughter via a warranty deed for one dollar, on

December 22, 2023.

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Discussion.2 1. Mootness. Before we address the merits of

Nelson's argument, we address the defendants' argument that the

appeal is moot because Nelson no longer owns the property. "It

is the general rule that courts decide only actual

controversies. We follow that rule, and normally do not decide

moot cases." Boston Herald, Inc. v. Superior Court Dep't of the

Trial Court, 421 Mass. 502, 504 (1995). "[L]itigation is

considered moot when the party who claimed to be aggrieved

ceases to have a personal stake in its outcome[,] . . . [and] a

court can order no further effective relief" (quotations and

citations omitted). Branch v. Commonwealth Employment Relations

Bd., 481 Mass. 810, 816-817 (2019), cert. denied, 140 S. Ct. 858

(2020). See Mullholland v. State Racing Comm'n, 295 Mass. 286,

289 (1936) (when "a decision by the court will not be applicable

to existing rights, no decision will be rendered" because "[t]he

questions originally involved have become moot").

2 Because Nelson's claim was dismissed on the basis of issue
preclusion, it was necessary for the motion judge, and necessary
here, to consider prior orders and rulings in other courts to
prevent relitigation of an issue previously decided. Bagley v.
Moxley, 407 Mass. 633, 636-637 (1990), quoting Heacock v.
Heacock, 402 Mass. 21, 23 n.2 (1988) ("'Issue preclusion' is the
modern term for the doctrine traditionally known as 'collateral
estoppel,' and prevents relitigation of an issue determined in
an earlier action where the same issue arises in a later action,
based on a different claim, between the same parties or their
privies").

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Here, as noted above, Nelson deeded the property to his

daughter on December 22, 2023, and, as a result, has no

ownership rights in the property. Additionally, Nelson does not

have a personal debt obligation to Wells Fargo after his Chapter

7 discharge. In other words, Wells Fargo's enforcement of its

in rem property rights through foreclosure does not involve

seeking redress from Nelson. Because Nelson no longer owns the

property and does not have a personal stake in the litigation,

we agree that the appeal is moot.3 See Branch, 481 Mass. at 816-

817. However, because the issues have been fully briefed, we

exercise our discretion to address them.

2. Merits. Nelson argues that the motion judges erred by

(1) removing the defaults against the defendants, (2) dismissing

the complaint and doing so without leave to amend, and

(3) denying Nelson's motion for reconsideration.4 None of these

arguments have merit.

a. Removal of the defaults by the first motion judge.

Because the defendants filed a motion to vacate the default

To the extent that Nelson is arguing that the mortgages
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are not enforceable because Lewis committed fraud or larceny in
relation to them, these claims, too, would be moot.

Nelson also argues that the second motion judge erred in
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denying Nelson's motion to strike pleadings, motions and
documents of "nonparties" Wells Fargo and Lewis, and erred in
allowing a misjoinder claim by "nonparty" Wells Fargo. We agree
with the third motion judge's finding that Wells Fargo is a
proper party of interest to this claim.

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before the judgment was entered, the defaults could be removed

for "good cause." See Institution for Sav. in Newburyport & its

Vicinity v. Langis, 92 Mass. App. Ct. 815, 819-822 (2018). See

Mass. R. Civ. P. 55 (c) ("For good cause shown the court may set

aside an entry of default and, if a judgment has been entered,

may likewise set it aside in accordance with Rule 60 [b]");

Ceruolo v. Garcia, 92 Mass. App. Ct. 185, 188 (2017). While

there is no mechanical formula for determining whether good

cause exists, a motion judge may consider a variety of factors,

including whether the default was willful, whether the adversary

will be prejudiced, and the timing of the motion. See id. at

189. We review a decision to remove a default for abuse of

discretion. See id. at 188.

Here, the defendants established through affidavits that

service was improper, thereby demonstrating that the default was

not willful. See Ceruolo, 92 Mass. App. Ct. at 189. In

addition, the defendants filed their motions to vacate the

default early in the case, when the motion judge should "resolve

doubts" in favor of the party seeking relief. See id.

Accordingly, the first motion judge did not abuse her discretion

in vacating the defaults against the defendants.

b. Dismissal without leave to amend. Next, Nelson argues

that it was error for the third motion judge to allow the motion

to dismiss without leave to amend on the basis of issue

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preclusion.5 "We review the allowance of a motion to dismiss de

novo. A motion to dismiss will be granted unless the factual

allegations in the complaint are enough to raise a right to

relief above the speculative level based on the assumption that

all the allegations in the complaint are true (even if doubtful

in fact)" (quotations and citations omitted). Verveine Corp. v.

Strathmore Ins. Co., 489 Mass. 534, 538 (2022). In dismissing a

complaint for issue preclusion, a motion judge must examine the

record of prior litigation "to decide what issues of fact were

actually litigated and necessarily determined." Bell v.

Stephens, 403 Mass. 465, 466 (1988). See Jarosz v. Palmer, 436

Mass. 526, 530 n.2 (2002).

Here, Nelson's claims were barred by issue preclusion

because (1) there were final judgments in the United States

District Court and the bankruptcy proceeding; (2) Nelson is the

same party from the prior actions; (3) the issue here, whether

Wells Fargo has standing to effect a foreclosure on Nelson's

mortgage, was addressed in his prior claims against Wells Fargo;

and (4) the issue decided was essential to the earlier cases, as

it was imperative for the court to determine whether Wells Fargo

5 We note that Nelson is incorrect in asserting that the
judge dismissed the complaint sua sponte. The defendants moved
to dismiss the complaint, there was briefing, and the judge
heard oral argument.

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demonstrated standing to effect a foreclosure on Nelson's

mortgages. See Green v. Brookline, 53 Mass. App. Ct. 120, 123

(2001). Based on these facts, we too conclude that Nelson's

claims are barred by the doctrine of issue preclusion.

Lastly, Nelson asserts that the third motion judge erred in

dismissing his complaint without leave to amend. "Our practice

is tolerant with respect to amendment of pleadings, but

presupposes that there is a viable pleading to amend. Put

differently, the pending case sought to be amended must be one

that could result in a recovery against the original defendant."

Ramirez v. Graham, 64 Mass. App. Ct. 573, 579 (2005).

Here, Nelson's complaint did not raise a right to relief

above a speculative level, nor was there a viable pleading to

amend, as the complaint was barred by issue preclusion. See

Verveine Corp., 489 Mass. at 538; Ramirez, 64 Mass. App. Ct. at

579. Because Nelson could not cure the defect in his claims, as

they were previously litigated, it was not error to dismiss the

complaint with prejudice. In any event, Nelson never sought

leave to amend the complaint.6

Nelson does not argue in his appellate brief that the
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third motion judge's order finding that Nelson could not assert
criminal claims for fraud and larceny was incorrect. Those
claims are waived. Twin Fires Inv., LLC v. Morgan Stanley Dean
Witter & Co., 445 Mass. 411, 421 n.19 (2005) (argument not
pressed on appeal waived).

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c. Denial of the motion for reconsideration. Nelson

argues that the denial of his motion for reconsideration was

error, yet he designated only the judgment of dismissal in his

notice of appeal, and not the order denying this motion, which

entered after he noticed this appeal. As such, "the validity of

that ruling is not properly before this court." Siles v.

Travenol Labs., Inc., 13 Mass. App. Ct. 354, 354 n.1 (1982).

See Mass. R. A. P. 3 (c) (1), as appearing in 491 Mass. 1601

(2023). In any event, however, the argument fails.

A judge's denial of a motion for reconsideration is

reviewed for abuse of discretion. See generally Audubon Hill S.

Condominium Ass'n v. Community Ass'n Underwriters of Am., 82

Mass. App. Ct. 461, 470 (2012). A motion for reconsideration

pursuant to Rule 9D of the Rules of the Superior Court (2023)

(rule 9D) shall be based on "(1) newly discovered evidence that

could not be discovered through the exercise of due diligence

before the original motion was filed; (2) a change of relevant

law; or (3) a particular and demonstrable error in the original

ruling or decision."

In his motion for reconsideration, Nelson did not identify

new evidence, a change of relevant law, or a demonstrable error

in the original ruling or decision.7 See rule 9D. Because

7 To the extent Nelson argued that the motion judge
incorrectly relied on previous orders and rulings of the BAP

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Nelson's arguments did not meet the standard of rule 9D, the

third motion judge did not abuse her discretion in denying the

motion for reconsideration.8

3. Attorney's fees. The defendants seek attorney's fees

and double costs on the ground that Nelson's appeal is

frivolous. We agree that the appeal is frivolous and that the

defendants are entitled to their reasonable attorney's fees.

The defendants may file a verified and itemized application for

fees and costs within fourteen days of the date of this

decision, and Nelson will have fourteen days thereafter in which

attached to the motion to dismiss by the defendants to determine
that Wells Fargo was a proper party, we disagree that it was
error. See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43,
45 n.4 (2004) (concluding that exhibits attached to motion to
dismiss can be relied on without converting motion to dismiss to
motion for summary judgment).

8 To the extent that we do not address any remaining
contentions, they "have not been overlooked. We find nothing in
them that requires discussion." Commonwealth v. Domanski, 332
Mass. 66, 78 (1954).

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to file any opposition to the amounts requested. See Fabre v.

Walton, 441 Mass. 9, 10-11 (2004).

Judgment of dismissal
affirmed.

By the Court (Vuono, Henry &
Wood, JJ.9),

Clerk

Entered: September 4, 2025.

9 The panelists are listed in order of seniority.

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